Risk-Utility Analysis in the Failure to Warn Context

Elsewhere in this Symposium issue, Professor Mark Geistfeld presents an argument favoring the application of risk-utility analysis to the duty to warn doctrine encompassed by the Restatement (Third) of Torts. In addition, the comments and the reporters' notes to the Restatement (Third) suggest altering the traditional duty to warn if the warning would cause "information overload," if the danger is "open and obvious," or if the danger applies to only a small percentage of potential customers. In response to Geistfeld and the Restatement (Third) comments and notes, Rheingold and Feinglass assert that applying a risk-utility analysis or altering the duty to warn in certain cases undermines the doctrine and does not reflect the application of the doctrine by the courts. Instead, Rheingold and Feinglass argue that the traditional duty to warn doctrine should remain the focus of the Restatement (Third).

The authors point to the text of the Restatement (Third); the potential difficulties in determining the utility of a warning or the social cost of "information overload"; the minimal cost of providing a warning even in marginal cases; and the competency of juries to apply the traditional doctrine.